Poland rebuked for ‘crippling’ high court

WARSAW — A report on the Polish government’s profound changes to the country’s top constitutional court released Friday concludes the steps endanger “not only the rule of law, but also the functioning of the democratic system.”

The study by the Venice Commission, a body of legal experts with the Council of Europe, a human rights watchdog, comes as a blow to Poland’s right-wing Law and Justice (PiS) party government, which had been hoping to soften the language of a draft report leaked last month.

Despite lobbying efforts by the foreign ministry, the final report was scathing in the shortcomings of the government’s approach to the Constitutional Tribunal, which has set off a political and legal crisis in Poland.

The commission “repeated the reasoning of one of the sides, that’s what saddens me the most,” said Konrad Szymański, the deputy foreign minister. “We underlined that we can agree on one thing, that there are no simple solutions. However, the commission decided to choose a simple path.”

The commission was invited to Poland in December by Foreign Minister Witold Waszczykowski, after a wave of foreign and domestic criticism over the government’s actions.

Polish Foreign minister Witold Waszczykowski during a EU Foreign Affairs Council meeting at EU headquarters in Brussels on January 18, 2016. John Thys/AFP via Getty Images

What's at stake

Part of the dispute is over who gets to be on the 15-judge court. The new government, elected in October, refused to recognize three judges elected by the previous parliament and instead elected its own judges, who have been sworn in by President Andrzej Duda but who haven’t been allowed to take seats on the tribunal.

The other dispute is over deep changes to the rules governing the functioning of the court rushed through parliament in December. Those rules make it possible to remove judges, set a minimum quorum of 13, change the definition of a majority needed for a verdict from half to two-thirds of judges and take away the tribunal’s ability to choose cases, insisting they be taken up in chronological order.

The Venice Commission warned that “crippling” the court’s effectiveness would undermine democracy and the rule of law. “Constitutional democracies require checks and balances,” it found.

Commission defends tribunal

The commission chastised the government for its refusal to publish Wednesday’s tribunal verdict, which found that the December rule changes were unconstitutional. The government argues that the tribunal should have acted according to those new rules, meaning the court, now counting only 12 judges and examining the new law out of chronological order, could not decide on the legality of the procedural rules.

Andrzej Rzepliński, the tribunal’s president, refused to accept that position and went ahead with the verdict.

The formal publication of the decision is the final step in making a tribunal decision valid. Calling the verdict only a “communiqué,” Rafał Bochenek, a government spokesman, said the tribunal “had not followed legal requirements.”

But the commission wrote that refusing to publish the judgment “would not only be contrary to the rule of law, such an unprecedented move would further deepen the constitutional crisis triggered by the election of judges in autumn 2015 and the Amendments of 22 December 2015.”

Consequences

The report will cause further problems for Warsaw because the European Commission has said it will take the Venice Commission conclusions into account when it restarts its probe into whether Poland has violated the bloc’s democratic principles after Easter.

"Current situation means these checks & balances are now in limbo. This is not acceptable in a EU based on rule of law," tweeted Martin Schulz, president of the European Parliament.

Law and Justice has oscillated on how to deal with the blowback to its approach to the tribunal. Some ministers have denounced Brussels politicians who dared question the government, especially if they were German, like Schulz.

Although the Venice Commission came at Warsaw's invitation, Jarosław Kaczyński, the leader of PiS and Poland’s most powerful politician, later denounced its draft report as “absurd from a legal point of view.”

Szymański’s tone in reaction to the final report was cautious.

Polish Prime Minister Beata Szydlo arrives at the Council of the European Union on February 18, 2016 in Brussels, Belgium. Dan Kitwood/Getty Images

The language has been more brutal in the country. Kaczyński has attacked anti-government protesters as being unpatriotic and backed by forces that want to keep Poland a colony — a theme echoed by Duda.

The constitutional battle is only one part of a series of rapid changes by PiS. Others include a politicization of the civil service, the government taking tighter control of public radio and television, verbal attacks on allies like Germany, and the replacement of top management in most state-controlled companies.

The opposition is planning a demonstration Saturday in front of the Constitutional Tribunal, and protestors have also gathered outside the prime minister’s office. The government said it plans its own massive counter-rally in the coming weeks, pulling in as many as 200,000 people to the capital.

Foreign worries

Although the constitutional crisis has battered Poland’s international reputation, opinion polls show PiS remains by far the most popular political party, with the support of 38 percent of those polled in a recent survey.

The other impacts are harder to judge.

The government’s refusal to publish the verdict could cause legal chaos. If the tribunal rules on any of the government’s other legislation — some of which is very controversial, such as a law dramatically limiting the property rights of farmers, or one giving the police more rights to snoop on people — lower courts will be uncertain whether such a verdict is binding or not.

It is unclear what will happen in Brussels. Hungary, also under fire for bending democratic rules, has sworn to block any attempt to suspend Poland’s voting rights in the European Council. However, Poland could find itself isolated on the margins of the EU, making it difficult to strike deals on issues like gaining approval for government aid to rescue floundering coal mines.

The crisis is complicating relations with Washington, the Polish government’s main foreign ally. John Kirby, a State Department spokesman, told Poland’s Rzeczpospolita newspaper that the U.S. is “alarmed” by the state of rule of law in Poland.

Interior Minister Mariusz Błaszczak told Poland’s TVN television the U.S. position “may be a misunderstanding.”

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Veritas-Semper

The Venice Commission first totally discredited itself by leaking their biased draft opinion to the mouthpiece of the Civic Platform – Gazeta Wyborcza.

Now – at least – they have admitted that the previous government broke the constitution. And, they see the problem as too many elected judges to the Tribunal Court.

Elected is one issue, but it still does not change the fact that the full roster 15 are fully elected, sworn in and accepted into the Court’s offices. The “excess 3” have not been sworn in nor have they been accepted into the Court.

The compromises put forward by the Kukiz15 and the ruling Law and Justice Party have already been rejected by the disruptive opposition – The Civic Platform and Nowoczesna – declaring, in their own words – ‘total war’ on the democratically government.

In reviewing the Venice Commission statement, it is glaringly obvious that they have not even read the source document – Poland’s constitution.

Article 197 plain as day states that: ‘the organization of the Tribunal Court, as well as the mode of proceedings before it, shall be specified by statute’.

The Venice Commission must truly believe that the Tribunal Court must write its own statutes, as clearly the new “King of Poland” – “Trybunal Rzeplinski I” has done in June 2015 together with the Civic Platform which is now fomenting to topple the democratically elected government of Poland.
Various compromises are on the table. Will the obstructionist opposition come to the compromise table? It is doubtful. All they want is their previous full control of the government and its institutions with the corresponding comfy incomes and on-going corruptions. And, they are hell bent on fomenting disorder to topple the government, including bloodshed as spelled out by one known as Jerzy Stepien.

However, hopefully the modern-day Targowica comes to its senses and steps back from the brink.

Posted on 3/11/16 | 7:27 PM CET

jott

So, “Veritas Semper”, why are you wasting your time producing all this vitriol every time there is a piece of news about Poland? The issue is simple and does not require your page-long elucubrations. Kaczyński and his followers are bent on pushing through illiberal changes, towards authoritarian rule and away from democracy as practiced in the Western community. Others in Poland oppose that. And, as is clear now, not only in Poland, but also in other Western democracies. So Kaczynski’s game is increasingly a losing one – will he acknowledge that and behave as a rational politician would do?
You see, Veritas Semper, it is simple. By the way, you should consider another name – what you keep spewing is very far from veritas…

Posted on 3/11/16 | 9:03 PM CET

bogdan

The constitutional court is just an excuse. What do the opposition and so called defenders of democracy hope to achieve? Impose sanctions on Poland? And then what? The reality of the situation is that according to the opinion polls PiS continues to grow in popularity, as most Poles consider external meddling in its affairs anti democratic. PiS despite its many faults will continue to grow in popularity among centrist voters as it is seen as a party looking after the average Pole, battling nepotism and corporate interests. Perhaps the bleating in the corporate owned media has something to do with corporate and banking interests being challenged in Poland?

Posted on 3/11/16 | 11:26 PM CET

Roman

“Others include a politicization of the civil service, the government taking tighter control of public radio and television, verbal attacks on allies like Germany, and the replacement of top management in most state-controlled companies.”